Mueller's Patton the back (investigation thread v. 22)

[Andy Capp]

Trump’s Statements Are Not an Obstruction of Justice


By Elizabeth Price Foley, Professor of Constitutional Law at Florida International University College of Law, author of “Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality.”

May 2017

...

Section 1510 of Title 18 of the United States Code addresses obstruction of criminal investigations. It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators. Even assuming Mr. Comey’s memo is accurate, there is no indication that President Trump willfully attempted to bribe the F.B.I. director. As the Supreme Court stated in United States v. Sun-Diamond Growers of California, “for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act.”


..

https://www.nytimes.com/2017/05/17/...ements-are-not-an-obstruction-of-justice.html

Spoiler: Full Piece

Trump’s Statements Are Not an Obstruction of Justice
By Elizabeth Price Foley
May 17, 2017

Leaked portions of a memo penned by James Comey, the former F.B.I. director, have provided new ammunition to President Trump’s opponents. The memo purportedly memorializes a conversation between Mr. Comey and the president regarding Michael Flynn, the former national security adviser. In it, Mr. Comey asserts that the president stated, “He is a good guy. I hope you can let this go.”

Widespread howls erupted, including by editors of this paper, asserting that President Trump obstructed justice. But as distasteful as the president’s statements may be, they do not constitute an obstruction of justice. Indeed, if they did, virtually every communication between criminal defense lawyers and investigators would be a crime.

Section 1510 of Title 18 of the United States Code addresses obstruction of criminal investigations. It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators. Even assuming Mr. Comey’s memo is accurate, there is no indication that President Trump willfully attempted to bribe the F.B.I. director. As the Supreme Court stated in United States v. Sun-Diamond Growers of California, “for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act.”


There is no evidence of a quid pro quo. Even assuming, for the sake of argument, that Mr. Trump intended an implied offer of continued employment in exchange for Mr. Comey’s dismissal of the Flynn investigation, it would be implausible for Mr. Comey to construe it as such. Mr. Comey was aware that he was an at-will employee who could be fired by the president at any time, for any reason. Indeed, when President Obama endorsed Hillary Clinton for president in June 2016 — during the height of the F.B.I.’s investigation into Secretary Clinton’s private email server — it would have been similarly implausible for Mr. Comey to construe Mr. Obama’s pro-Clinton remarks as an implicit offer of continued employment, in exchange for dropping the Clinton investigation. Even though Mr. Comey dropped the investigation one month later, he presumably knew that although it would please both Mr. Obama and Mrs. Clinton, it would not insulate him from being fired.



But even if one adopted an unprecedentedly broad conception of bribery, Mr. Trump’s purported statement still would not violate Section 1510. The statute is designed to preserve the free flow of information, prohibiting only acts that obstruct investigators’ access to information. Bribery of a potential witness, for example, is behavior prohibited by Section 1510. But telling the F.B.I. director that someone is a “good guy” and expressing the hope that an investigation will cease does not obstruct the free flow of information.

Another, broader federal obstruction statute is Section 1505 of Title 18, but even this statute does not fit. Specifically, Section 1505 declares that anyone who “corruptly” endeavors to obstruct the proper administration of law “under which any pending proceeding is being had before any department or agency of the United States” is guilty of a felony. Even putting aside the difficulty of proving, beyond a reasonable doubt, that President Trump’s brief and generalized words evinced the necessary “corrupt” mind-set, Section 1510 applies only to a “pending proceeding.”

In the almost 120 years since Section 1505 and its predecessor have been on the books, no court appears to have ever held that an ongoing F.B.I. investigation qualifies as a “pending proceeding” within the meaning of the statute. Instead, Section 1505 applies to court or court-like proceedings to enforce federal law. In addition to prosecutions (where charges have been filed with a court), such proceedings include actions of enforcement by federal agencies such as the Internal Revenue Service, Securities and Exchange Commission or National Labor Relations Board, in which the agency has broad powers not merely to investigate statutory violations, but also to enforce them via subpoena or other administrative proceedings.

The F.B.I., by contrast, possesses only a power to investigate — not enforce — federal criminal violations. When the F.B.I. concludes an investigation, it forwards the evidentiary fruits to the Department of Justice, which then decides whether to prosecute. Indeed, it was Mr. Comey’s arrogation of the Justice Department’s prosecutorial power that led to bipartisan calls for his ouster before the 2016 presidential election.

Because the F.B.I. lacks enforcement power, its investigations are not a “pending proceeding,” and courts that have considered the question have so concluded. The legislative history, moreover, confirms that Congress did not intend Section 1505 to reach F.B.I. investigations. The House Judiciary Committee report declared that “attempts to obstruct a criminal investigation or inquiry before a proceeding has been initiated are not within the scope of the proscription” of Section 1505 (italics added for emphasis).

No court has interpreted Section 1505’s “pending proceeding” language to include statements such as those purportedly made by President Trump for a reason. Such generic “he’s-a-good-guy-can’t-you-drop-the-charges?” statements are routinely made to investigators and prosecutors. Defending one’s self, client or friend is a natural instinct, and beseeching leniency is not tantamount to obstruction. Holding otherwise would endorse a breathtaking expansion of obstruction, and be utterly inconsistent with First Amendment freedoms.

Principled objections to Mr. Trump’s policies and leadership style should not blind opponents to the dangers of repeated, knee-jerk calls for criminal prosecution of the president of the United States. Let the evidence unfold, and reserve serious charges if and when the evidence warrants it. Crying wolf undermines the credibility of the opposition, further divides an already deeply divided country and breeds cynicism about American institutions that is as dangerous to our republic, if not more, than outside meddling.

Elizabeth Price Foley, a professor of constitutional law at Florida International University College of Law, is the author of “Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality.”

What he was expected to receive in return was continued employment as head of the FBI.

More honest than what? Point me to something "dishonest" I posted.
What did I post that is "disingenuous"?

ROFL

 

[waiguoren]

the president himself obstructing justice

You clearly don't know the definition of this term.

Random posters on the internet supporting an investigation into the president of America obstructing justice is too much for the self-declared defender of rule of law to bear.

It's not that these people are "supporting an investigation". Many of them are utterly convinced that Trump is guilty of obstruction of justice despite their not having the most cursory understanding of the relevant legal definitions or the constitutional background.

 

[Gandhi]

Give an example.


Libel. I didn't call everyone else tribalistic. I also didn't "spin quite tribally".



I am the politics betting GOAT. That is beyond question. Multiple frequent posters in this thread (@PolishHeadlock ,@andnowweknow , @HomerThompson ) are going to lose their signatures or more to me in the near future, thereby solidifying this my status as GOAT champion. Even now, the fake champion (@Jack V Savage) is in his dying days. Hail to the king.

As for "fight me", I'm going to assume you know that's a mischaracterization but persist for tribalist reasons.

LOL this is just gold. Next time take the compliment for what it is instead of doubling down on most of your faults.

See you in the cage.......

 

[waiguoren]

What he was expected to receive in return was continued employment as head of the FBI.

Even if this rubber-band like interpretation of the statute were valid (it's not), you seem to have ignored:

It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators.

There is no way to argue that firing Comey would have had the effect of "obstructing the communication of information about crimes".

 

[Gandhi]

What point are you trying to make?


Doubt is my default, as it should be for you. If you don't doubt it, I'm assuming you've personally performed a thorough review of the DNC server logs.



More honest than what? Point me to something "dishonest" I posted.



What did I post that is "disingenuous"?

The right has never tired of correclty pointing the enormousness flaws and false equivalencies inherent in Chomsky's critique of foreign policy. Yet you post his BS because it supports your narrative. You then admit the comparison between Israel and Russia is flawed.

 

[waiguoren]

LOL this is just gold. Next time take the compliment for what it is instead of doubling down on most of your faults.

See you in the cage.......

Just as I thought. No intelligible response.

As for the combativeness, you know you like it Gandhi. That's why you're on a cage-fighting site to begin with. Embrace the inner you.....




-------------------
Roger Stone: Robert Mueller is coming for me

 

[waiguoren]

The right has never tired of correclty pointing the enormousness flaws and false equivalencies inherent in Chomsky's critique of foreign policy.

Ok.

Yet you post his BS because it supports your narrative.

I reject Chomsky's narrative.

You then admit the comparison between Israel and Russia is flawed.

Of course. Do you doubt that it is? @Rational Poster and I agreed on that.

 

[PolishHeadlock]

Give an example.


Libel. I didn't call everyone else tribalistic. I also didn't "spin quite tribally".



I am the politics betting GOAT. That is beyond question. Multiple frequent posters in this thread (@PolishHeadlock ,@andnowweknow , @HomerThompson ) are going to lose their signatures or more to me in the near future, thereby solidifying this my status as GOAT champion. Even now, the fake champion (@Jack V Savage) is in his dying days. Hail to the king.

As for "fight me", I'm going to assume you know that's a mischaracterization but persist for tribalist reasons.

You're shook

 

[Andy Capp]

Even if this rubber-band like interpretation of the statute were valid (it's not), you seem to have ignored:

It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators.

There is no way to argue that firing Comey would have had the effect of "obstructing the communication of information about crimes".

I reiterate, ROFL
It was clearly the intended effect whether there was any way it would have that effect or not.

 

[Joe]

Trump thinks this tweet makes him look good and the fbi bad

 

[waiguoren]

I reiterate, ROFL
It was clearly the intended effect whether there was any way it would have that effect or not.

That's utterly absurd and you must know it. Your mind can be sharper than that if you allow it to be.

 

[Gandhi]

Ok.


I reject Chomsky's narrative.



Of course. Do you doubt that it is? @Rational Poster and I agreed on that.

Umm you posted his speech which supports your position that russian thing is BS with no comment and then later agreed with Rational. So without all your twisting and turning, my posts are logical responses. Next time you post something you dont agree with, say that upfront and you will get a different response.

 

[waiguoren]

Umm you posted his speech which supports your position that russian thing is BS with no comment and then later agreed with Rational. So without all your twisting and turning, my posts are logical responses. Next time you post something you dont agree with, say that upfront and you will get a different response.

I often post articles and videos I don't agree with. You should always assume I disagree, unless I post Dershowitz. Even then I'll disagree about 10% of the time.

 

[OverCoronavirus Pressure]

Trump thinks this tweet makes him look good and the fbi bad

Yet

 

[PolishHeadlock]

I often post articles and videos I don't agree with. You should always assume I disagree, unless I post Dershowitz.

 

[Gandhi]

Just as I thought. No intelligible response.

As for the combativeness, you know you like it Gandhi. That's why you're on a cage-fighting site to begin with. Embrace the inner you.....




-------------------
Roger Stone: Robert Mueller is coming for me

There was nothing intelligible to respond to and it would just devolve into an argument over characterizations. In any event your very next few post are perfect examples of what I am talking about.

I don't mind a good back and forth but the "Goat / Cage" stuff is goofy. I get enough "cage fighting" at pro class and for an oldish fart I can more than hold my own.

 

[Gandhi]

I often post articles and videos I don't agree with. You should always assume I disagree, unless I post Dershowitz. Even then I'll disagree about 10% of the time.

So I should just assume that you disagree with arguments you post, even when they are general supportive of your take on things? My bad, I can see why my posts confused you. You are speaking your own language again.......

LOL at asking me to prove something and then putting Exhibits A, B, C right in this thread.

 

[OverCoronavirus Pressure]

I've got a few pages of equations, the numbers are helping the pieces fall into place

I think I've figured out how Dred Scot fits into all this

 

[waiguoren]

There was nothing intelligible to respond to and it would just devolve into an argument over characterizations. In any event your very next few post are perfect examples of what I am talking about.

I don't mind a good back and forth but the "Goat / Cage" stuff is goofy. I get enough "cage fighting" at pro class and for an oldish fart I can more than hold my own.

More unintelligible words. Around and around we go.

Here's a video relevant to the thread topic:



Why it's Time to Fire Mueller Now

 

[waiguoren]

So I should just assume that you disagree with arguments you post, even when they are general supportive of your take on things? My bad, I can see why my posts confused you. You are speaking your own language again.......

LOL at asking me to prove something and then putting Exhibits A, B, C right in this thread.

No Gandhi. Let's take this reallll sloooooowly......


When I post a video or an article, the mere posting of that content should not be seen as an endorsement of the content of the post.

However, when I present an argument without attribution, that argument is indeed my own and should be read as such.

I know you're a self-described "old fart", but I don't think you're that old.
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Here's a video relevant to the current thread topic: